Bolomey v. Houchins
| Decision Date | 21 February 1950 |
| Docket Number | No. 27705,27705 |
| Citation | 227 S.W.2d 752 |
| Parties | BOLOMEY et al. v. HOUCHINS et al. |
| Court | Missouri Court of Appeals |
Arnold J. Murphy, Jr., Louisiana, and James D. Clemens, Bowling Green, for appellants.
F. D. Wilkins, Louisiana, and Rendlen, White & Rendlen, Hannibal, for respondents.
BENNICK, Commissioner.
This is a suit to determine the location of an easement or roadway across defendants' land, and to enjoin defendants from interfering with plaintiffs' use of the roadways as so located.
There is no dispute about the existence of the easement, which was created by the will of one Rufus Henderson which was admitted to probate in the Probate Court of Pike County, Missouri, on September 10, 1892.
The lands of the respective parties lie some few miles west of the City of Louisiana. Defendants are the owners of a tract of 37 acres which lies immediately south of an old public road which connects with an improved farm-to-market road leading into Louisiana. Plaintiffs' land--a tract of 40 acres--lies immediately south of defendants' land; and as the two tracts are situated, plaintiffs' only means of access to the public road is across defendants' land.
Defendants' land slopes downward towards the north. A small watercourse known as Henderson Branch runs across the northeast corner of defendants' land in a generally north and south direction. The branch flows towards the north, and separates the main body of defendants' land from a small tract of 5.77 acres which lies to the north and east of the branch. The land on the west bank of the branch is high and impassable for any kind of vehicle. However the land along the east bank is level and suitable to be used for roadway purposes.
At the time of his death Rufus Henderson was the owner of all the land now owned by both plaintiffs and defendants; and in his will, by which he devised the entire 77 acres to his daughter, Louise, subject to a life estate in his wife, Sarah, he inserted a provision 'reserving for my sons, John and Thomas, the right of way through said tract of land'. The record does not reveal where John and Thomas were residing at the time of the execution of Rufus Henderson's will, though it is obvious that they were so situated that their only means of ingress and egress was across the 77-acre tract. In 1897 John and Thomas acquired the tract except for the northeast corner of 5.77 acres which had been previously sold by Louise to their brother-in-law, Ben Zumwalt; and in November of the same year they conveyed the north portion of the tract to Ben Zumwalt (less the 5.77 acres which he already owned), 'reserving to said first parties the right of roadway through said tract'. By subsequent conveyances defendants have become the owners of the north 37 acres through Ben Zumwalt, while plaintiffs have acquired the south 40 acres through the Hendersons.
Thus it is to be seen that Rufus Henderson created the easement without definitely fixing its location other than to refer to it as land from the south at a point west of Henderson Branch, and then proceeds downhill to the north until it reaches the branch near the south end of the 5.77-acre field. The dispute is over the question of its course from that point on. According to defendants, its further course is wholly in the bed of the branch to the north end of their property, while under plaintiffs' theory the roadway crosses the branch and then continues northward over the level ground along the east bank of the branch at the edge of the 5.77-acre field.
The reason for the controversy is that the bed of the branch is at best poorly adapted for use as a roadway for vehicles such as a modern farmer employes. It is rough at all times, and after heavy floods, which periodically occur in rainy seasons, it becomes filled with stones and boulders which must be removed in order for vehicles to travel over it. Furthermore in winter weather it fills with ice and slush so that it cannot be traversed by wheeled vehicles, and is frequently impassable even to one on horseback.
The witnesses consisted of the respective parties themselves, certain former owners of one or the other of the tracts of land, and other persons more or less familiar with the territory in question over a period of years.
All the witnesses were agreed that the bed of the branch was always subject to use as a roadway whenever its condition would permit. Likewise they were all agreed that there had always been more or less travel along the east bank of the branch, though they were not entirely in harmony as to whether there was a definitely marked roadway along that course. Plaintiffs' evidence tended generally to show that both ways had always been available and open to travel at the option of any one who desired to cross the 37-acre tract of land. Defendants' evidence, on the other hand, was to the general effect that the bank was never traveled by members of the public except when the bed of the stream became impassable, and then only by express permission of the owners of the land.
Generally speaking, plaintiffs' evidence tended to indicate that the two roads had been used interchangeably, one about as much as the other. According to some of the witnesses, the branch road had customarily been used when it was passable, but when it became impassable, travel was shifted to the bank road. Only one of plaintiffs' witnesses made any reference to the necessity of getting permission from the owner of the land to leave the stream and travel along the bank. The other witnesses had the idea that permission had never been required, and that the course to be taken had been left entirely to the choice of the traveler. For the most part plaintiffs' witnesses could not recall that the 5.77-acre tract had ever been fenced until shortly before the institution of this lawsuit, or that crops had ever been raised upon it.
According to defendants' evidence, the branch road was the original road, and whatever travel was had along the bank was only for the benefit of the owners of the land. In seasons when the branch road was impassable, members of the public, including plaintiffs' predecessors in title, would travel along the bank, but only by permission of the owner of the land. Marcey Henderson, a son of John and a grandson of Rufus, and the man from whom plaintiffs acquired their 40-acre tract, testified that when he owned such tract he never claimed any right to travel along the bank except by permission of the owner. Contrary to what plaintiffs' evidence had disclosed, defendants' witnesses testified that the 5.77-acre tract had originally been enclosed by a rail fence which extended up to and ran along the very edge of the branch, and that the field had been frequently in cultivation. It was in the winter season after the crops had been gathered that the branch would become impassable because of ice and slush. At other times any high water would subside in an hour or so. Defendants objected to the use of the bank for roadway purposes because it involved cutting up the field when the ground was soft and stirring up dust when it was dry. A wire fence shutting off the bank road was erected by defendants in February, 1948, and this suit followed shortly thereafter.
At the close of all the evidence the trial judge, acting at the request of the respective parties and accompanied by their representatives, went out to the vicinity in question and made a personal inspection of the premises.
In its findings of fact regarding the location of the roadway, the court found that from the point on defendants' south line where the roadway enters their land to the west of the Henderson Branch, the roadway meanders downhill some 200 yards to a point on the west bank of the branch that it crosses to the east side of the branch at that point by way of a crossing theretofore constructed by the parties and their predecessors in title; and that from such point on it runs along the east bank of the branch to the north line of defendants' property, where it emerges upon the public highway.
It is thus to be observed that upon the warmly contested issue of the location of the roadway, the court sustained plaintiffs' contention while disapproving the contention of defendants.
Concluding that Rufus Henderson, by his will, had intended to establish a roadway susceptible of travel at all times throughout the year and had not intended to fix the roadway in the bed of the branch except as it was necessary to cross the same, and further finding that defendants had interfered with plaintiffs' free use and enjoyment of the roadway, the court perpetually enjoined defendants and all who might claim under them from obstructing plaintiffs and all who might claim under them in the free use and enjoyment of the roadway as the court had found that it was to be located.
Unavailingly moving for a new trial, defendants gave notice of appeal, and by subsequent steps have caused the case to be transferred to this court for...
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